Legal Research
Cases
Viselle v Grieve

Viselle v Grieve

Case [2014] NSWDC 27 27 March 2014

Costs

Stay of Proceedings

Appeal

Civil Litigation & Procedure

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: Viselle v Grieve [2014] NSWDC 27
Hearing dates: 27 March 2014
Decision date: 27 March 2014
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Until further order of the court, the stay sought by the plaintiff in paragraph 4(f) of the summons is granted.
(2) Costs reserved, with liberty to apply after conclusion of the proceedings the subject of the costs assessment.
(3) Liberty to the parties to apply for the stay to be lifted after conclusion of the proceedings the subject of the costs assessment; these proceedings to remain in the Inactive List with a review date to be allocated by the Registrar.
(4) Summons otherwise dismissed.
(5) Cross-claim dismissed.
(6) Defendant/Cross-Claimant's Notice of Motion dismissed.

Catchwords: COSTS - costs assessment appeal pursuant to s 384 Legal Profession Act 2004 (NSW) - whether the plaintiff was afforded procedural fairness - whether the barrister was in fact retained - s 384 appeal dismissed - application for stay based on "no win no fee" costs agreement - proceedings the subject of the costs agreement not yet concluded - application for stay granted until further order - proceedings placed in Inactive List pending resolution of the proceedings the subject of the costs agreement
Legislation Cited: Legal Profession Act 2004 (NSW), ss 384, 385, 386 and 387
Cases Cited: Adamson v Miller [2005] NSWSC 971
Arnott v Glissan [2013] NSWCA 138
BP Refinery (Westernport) Pty Ltd v Hastings Shire [1977] UKPCHCA 1; (1994) 180 CLR 266
Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 468
CSR Ltd v Eddy (2008) 70 NSWLR 725
Foreman v Rattray [2006] NSWSC 260
Ireland v Trilby Misso Lawyers [2011] QSC 127
Lange v Back & Schwartz [2009] NSWDC 180
Legal Services Board v Forster [2011] VSC 292
Levy v Bergseng (2008) 72 NSWLR 178
Lyons v Wende [2007] NSWSC 101
Madden v New South Wales Insurance Ministerial Corporation [1999] NSWSC 196
McCausland v Surfing Hardware International Holdings Pty Ltd [2010] NSWDC 222
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 22
Rahman v Sharpe (No 2) [2012] NSWDC 49
Re Power's Bills of Costs [1996] 2 Qd R 202
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Wentworth v Rogers (2006) 66 NSWLR 474
Texts Cited: Dal Pont, Law of Costs (3rd ed., LexisNexis 2013)
Category: Interlocutory applications
Parties: Plaintiff: Liliane Viselle
First Defendant: Donald Edward Grieve
Second Defendant: Robert George Webley
Representation: Plaintiff: Ms L Viselle (in person)
Defendant: Mr C W Crawley
Plaintiff: In person
Defendant: Aubrey F Crawley & Co

File Number(s): 2013/258949
Publication restriction: None

Judgment

There are three applications before the court:

(a) The plaintiff's amended summons filed on 6 December 2013 seeking to appeal from the costs assessor's decision of 11 July 2013 in relation to the assessment of counsel's fees in the sum of $30,250;

(b) The first defendant's cross-summons filed on 13 November 2013 appealing from the refusal of the costs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Viselle v Grieve

Details

AGLC: Viselle v Grieve [2014] NSWDC 27
Case: [2014] NSWDC 27
Decision Date: 27 March 2014

CaseChat Overview and Summary

Viselle v Grieve involved the plaintiff, Viselle, and the defendant, Grieve, in a dispute concerning a costs assessment appeal. The case was heard in the Supreme Court of New South Wales. The plaintiff sought to appeal a costs assessment made under section 384 of the Legal Profession Act 2004 (NSW). The plaintiff argued that the assessment process did not afford them procedural fairness and questioned whether the barrister was actually retained as claimed.

The primary legal issues were whether the plaintiff was given procedural fairness during the costs assessment and whether the barrister was indeed retained. The court had to determine if the procedure followed was fair and if there was a valid retention of the barrister. The plaintiff also sought a stay of the proceedings pending resolution of the underlying matter, which was the subject of a "no win no fee" costs agreement.

The court dismissed the appeal regarding the costs assessment, finding that the plaintiff had not demonstrated a lack of procedural fairness. However, the court granted a stay of the proceedings until further order because the underlying matter, which was the subject of the costs agreement, had not concluded. The court found that it was appropriate to keep the proceedings in the Inactive List until the underlying matter was resolved. The summons was otherwise dismissed, and the cross-claim and the defendant/cross-claimant's notice of motion were also dismissed.

Orders

Orders of the court

(1) Until further order of the court, the stay sought by the plaintiff in paragraph 4(f) of the summons is granted.

(2) Costs reserved, with liberty to apply after conclusion of the proceedings the subject of the costs assessment.

(3) Liberty to the parties to apply for the stay to be lifted after conclusion of the proceedings the subject of the costs assessment; these proceedings to remain in the Inactive List with a review date to be allocated by the Registrar.

(4) Summons otherwise dismissed.

(5) Cross-claim dismissed.

(6) Defendant/Cross-Claimant's Notice of Motion dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Viselle v Grieve [2014] NSWDC 27

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 20 of 20 shown

Arnott v Glissan
[2013] NSWCA 138 Para 1

…osts are simply too high. The appeal process cannot be used to challenge the quantum of costs. As the Court of Appeal pointed out in Arnott v Glissan [2013] NSWCA 138 at [6] per Beazley P:…
Rahman v Sharpe (No 2)
[2012] NSWDC 49

…cCausland v Surfing Hardware International Holdings Pty Ltd [2010] NSWDC 222 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 22 Rahman v Sharpe (No 2) [2012] NSWDC 49 Re Power's Bills of Costs [1996] 2 Qd R 202 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Wentworth v Rogers (2006) 66 NSWLR 474 Texts…
Legal Services Board v Forster
[2011] VSC 292 Para 1

…ties, but rather to determine what a reasonable person in the situation of the parties would have intended or assumed: Legal Services Board v Forster [2011] VSC 292 at [27], citing Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165. A term will not be implied into an agreement where that term contradicts…
Ireland v Trilby Misso Lawyers
[2011] QSC 127 Para 1

…nt could terminate the retainer if, for example, the plaintiff failed to accept advice or terminated the agreement: cf Ireland v Trilby Misso Lawyers [2011] QSC 127 at [9].…
McCausland v Surfing Hardware International Holdings Pty Ltd
[2010] NSWDC 222

…7] NSWSC 101 Madden v New South Wales Insurance Ministerial Corporation [1999] NSWSC 196 McCausland v Surfing Hardware International Holdings Pty Ltd [2010] NSWDC 222 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 22 Rahman v Sharpe (No 2) [2012] NSWDC 49 Re Power's Bills of Costs [1996] 2 Qd R 202 Toll (FGCT) Pty…
Lange v Back & Schwartz
[2009] NSWDC 180 Para 1

…n v Rattray [2006] NSWSC 260 at [20]. However, the contrary view was taken in Levy v Bergseng (2008) 72 NSWLR 178 at [50] and Lange v Back & Schwartz [2009] NSWDC 180 at [26]-[27] (referring to CSR Ltd v Eddy (2008) 70 NSWLR 725 at [38]-[39] and Wentworth v Rogers (2006) 66 NSWLR 474 at [194]-[198]). I also note th…
Levy v Bergseng (No 2)
[2008] NSWSC 958 Para 1

…on v Miller [2005] NSWSC 971 at [10] and [18] and Foreman v Rattray [2006] NSWSC 260 at [20]. However, the contrary view was taken in Levy v Bergseng (2008) 72 NSWLR 178 at [50] and Lange v Back & Schwartz [2009] NSWDC 180 at [26]-[27] (referring to CSR Ltd v Eddy (2008) 70 NSWLR 725 at [38]-[39] and Wentworth v Roger…
CSR Ltd v Eddy
[2008] NSWCA 83 Para 1

…r, the contrary view was taken in Levy v Bergseng (2008) 72 NSWLR 178 at [50] and Lange v Back & Schwartz [2009] NSWDC 180 at [26]-[27] (referring to CSR Ltd v Eddy (2008) 70 NSWLR 725 at [38]-[39] and Wentworth v Rogers (2006) 66 NSWLR 474 at [194]-[198]). I also note the discussion of this issue in McCausland v Surfin…
Wentworth v Rogers & Anor
[2007] HCATrans 747 Para 1

…t [50] and Lange v Back & Schwartz [2009] NSWDC 180 at [26]-[27] (referring to CSR Ltd v Eddy (2008) 70 NSWLR 725 at [38]-[39] and Wentworth v Rogers (2006) 66 NSWLR 474 at [194]-[198]). I also note the discussion of this issue in McCausland v Surfing Hardware International Holdings Pty Ltd , supra . The issue is disc…
CSR Limited v Eddy
[2007] NSWSC 210 Para 1

…view was taken in Levy v Bergseng (2008) 72 NSWLR 178 at [50] and Lange v Back & Schwartz [2009] NSWDC 180 at [26]-[27] (referring to CSR Ltd v Eddy (2008) 70 NSWLR 725 at [38]-[39] and Wentworth v Rogers (2006) 66 NSWLR 474 at [194]-[198]). I also note the discussion of this issue in McCausland v Surfing Hardware In…
Lyons v Wende
[2007] NSWSC 101 Para 1

…o challenged retainer. The basis upon which retainer is challenged may, in certain circumstances, be a mixed question of fact and law ( Lyons v Wende [2007] NSWSC 101), but generally is an issue of law. I note the discussion of the difficulties of a client challenging retainer on assessment are discussed in Dal Pon…
Wentworth v Rogers
[2006] NSWCA 145 Para 1

…008) 72 NSWLR 178 at [50] and Lange v Back & Schwartz [2009] NSWDC 180 at [26]-[27] (referring to CSR Ltd v Eddy (2008) 70 NSWLR 725 at [38]-[39] and Wentworth v Rogers (2006) 66 NSWLR 474 at [194]-[198]). I also note the discussion of this issue in McCausland v Surfing Hardware International Holdings Pty Ltd , supra . The…
Forman v Rattray
[2006] NSWSC 260 Para 1

…unfairness was a question of mixed fact and law. Similar views were taken in Adamson v Miller [2005] NSWSC 971 at [10] and [18] and Foreman v Rattray [2006] NSWSC 260 at [20]. However, the contrary view was taken in Levy v Bergseng (2008) 72 NSWLR 178 at [50] and Lange v Back & Schwartz [2009] NSWDC 180 at [26]-[27…
Adamson v Miller
[2005] NSWSC 971 Para 1

…than "question of law" and that consequently procedural unfairness was a question of mixed fact and law. Similar views were taken in Adamson v Miller [2005] NSWSC 971 at [10] and [18] and Foreman v Rattray [2006] NSWSC 260 at [20]. However, the contrary view was taken in Levy v Bergseng (2008) 72 NSWLR 178 at [50]…
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd
[2004] HCA 52 Para 1

…of the parties would have intended or assumed: Legal Services Board v Forster [2011] VSC 292 at [27], citing Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165. A term will not be implied into an agreement where that term contradicts an express term: BP Refinery, supra, at 283; Castlemaine Tooheys Ltd v Carl…
Scott v Davis
[2000] HCA 52 Para 228

…of his principal within the scope of his authority is a contract directly between the principal and the third party: see, for example, Scott v Davis 204 CLR 333 per Gummow J at [228];…
Madden v New South Wales Insurance Ministerial Corporation
[1999] NSWSC 196 Para 1

…of mixed fact and law (a s 385 issue). The authorities on this issue are inconsistent. In Madden v New South Wales Insurance Ministerial Corporation [1999] NSWSC 196 Malpass M considered, in relation to the repealed legislation, that the term "matter of law" was more restrictive than "question of law" and that con…
Pavey & Matthews Pty Ltd v Paul
[1987] HCA 5

…inisterial Corporation [1999] NSWSC 196 McCausland v Surfing Hardware International Holdings Pty Ltd [2010] NSWDC 222 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 22 Rahman v Sharpe (No 2) [2012] NSWDC 49 Re Power's Bills of Costs [1996] 2 Qd R 202 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Wentwo…
Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd
[1986] HCA 38 Para 1

…d into an agreement where that term contradicts an express term: BP Refinery, supra, at 283; Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 468 at 490-492. The terms of this costs agreement specifically provide, as the costs assessor notes at paragraph 25, that the payment of costs would be d…
BP Refinery (Westernport) Pty Ltd v Shire of Hastings
[1977] UKPCHCA 1

…so as to satisfy the tests restated in BP Refinery (Westernport) Pty Ltd v Shire of Hastings [sic] 180 CLR 266 at 283."…

Legislation cited in this decision · 1

Legal Profession Act 2004 (Vic)
384, 385, 386, 387 5 mentions (from Para 1)

Medium Neutral Citation:	Viselle v Grieve [2014] NSWDC 27
Hearing dates:	27 March 2014
Decision date:	27 March 2014
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Until further order of the court, the stay sought by the plaintiff in paragraph 4(f) of the summons is granted. (2) Costs reserved, with liberty to apply after conclusion of the proceedings the subject of the costs assessment. (3) Liberty to the parties to apply for the stay to be lifted after conclusion of the proceedings the subject of the costs assessment; these proceedings to remain in the Inactive List with a review date to be allocated by the Registrar. (4) Summons otherwise dismissed. (5) Cross-claim dismissed. (6) Defendant/Cross-Claimant's Notice of Motion dismissed.
Catchwords:	COSTS - costs assessment appeal pursuant to s 384 Legal Profession Act 2004 (NSW) - whether the plaintiff was afforded procedural fairness - whether the barrister was in fact retained - s 384 appeal dismissed - application for stay based on "no win no fee" costs agreement - proceedings the subject of the costs agreement not yet concluded - application for stay granted until further order - proceedings placed in Inactive List pending resolution of the proceedings the subject of the costs agreement
Legislation Cited:	Legal Profession Act 2004 (NSW), ss 384, 385, 386 and 387
Cases Cited:	Adamson v Miller [2005] NSWSC 971 Arnott v Glissan [2013] NSWCA 138 BP Refinery (Westernport) Pty Ltd v Hastings Shire [1977] UKPCHCA 1; (1994) 180 CLR 266 Castlemaine Tooheys Ltd v Carlton & United Breweries Ltd (1987) 10 NSWLR 468 CSR Ltd v Eddy (2008) 70 NSWLR 725 Foreman v Rattray [2006] NSWSC 260 Ireland v Trilby Misso Lawyers [2011] QSC 127 Lange v Back & Schwartz [2009] NSWDC 180 Legal Services Board v Forster [2011] VSC 292 Levy v Bergseng (2008) 72 NSWLR 178 Lyons v Wende [2007] NSWSC 101 Madden v New South Wales Insurance Ministerial Corporation [1999] NSWSC 196 McCausland v Surfing Hardware International Holdings Pty Ltd [2010] NSWDC 222 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 22 Rahman v Sharpe (No 2) [2012] NSWDC 49 Re Power's Bills of Costs [1996] 2 Qd R 202 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Wentworth v Rogers (2006) 66 NSWLR 474
Texts Cited:	Dal Pont, Law of Costs (3rd ed., LexisNexis 2013)
Category:	Interlocutory applications
Parties:	Plaintiff: Liliane Viselle First Defendant: Donald Edward Grieve Second Defendant: Robert George Webley
Representation:	Plaintiff: Ms L Viselle (in person) Defendant: Mr C W Crawley Plaintiff: In person Defendant: Aubrey F Crawley & Co
File Number(s):	2013/258949
Publication restriction:	None